Analysis — Attorney General Steve Six issues opinion to legislators on open meetings laws. Democratic AG Six applies the law after Republican District Attorney Steve Howe does not.

Attorney General Steve Six’s recent opinion on the Kansas Open Meetings Act is at a great disagreement with a recent decision by Johnson County District Attorney Steve Howe.

There are hundreds and hundreds of millions of dollars that flow through local governments in Johnson County, and Kansas legislators have attempted to require that local elected officials discuss budget and tax items only during meetings that are open to the public.

In mid-summer 2009, District Attorney Steve Howe looked at the Kansas Open Meetings Act, and Howe decided that it is acceptable for the more than two dozen local governments in Johnson County to discuss budget items in detail, and during meetings that are entirely closed to the public.

At Johnson County Community College in early 2009, President Terry Calaway shared a 64-item list of possible budget cuts near the end of a closed meeting that was held in order to evaluate Calaway’s job performance.  Calaway had prepared the list prior to the closed meeting, and he shared it voluntarily, without anyone asking for it. Calaway then instructed the board not to share the list.  These actions clearly violated the law.

This list was shared by Trustee Benjamin Hodge, after Kansas City Star reporter Jim Sullinger made a general request for budget-related documents.  Hodge had served for two years in the Kansas Legislature, where he had voted on the Kansas Open Meetings Act.

Calaway and Trustee Lynn Mitchelson were incensed that this list was shared, and they later lied by saying that Hodge had requested the list — this false theme was actually legally irrelevant, as it still would have been inappropriate for Calaway to share the list, even if Hodge had specifically requested the list.

This was not Mitchelson’s first attempted cover-up.

The ex-banker Mitchelson had previously indicated to Hodge that the college should be run like a bank, where there is virtually no dissent on the private board, and where those in disagreement keep their mouths shut and let the majority do whatever the majority decides to do.  This perhaps explains why Mitchelson found it appropriate in 2006 for college attorney Mark Ferguson to act in an unprofessional and intimidating manner toward then-student paper editor Miguel Morales, during the time when Morales successfully uncovered the reality that at least four women claimed that they were sexually harrassed by long-time President Charles Carlsen.

During this 2009 cover-up by Lynn Mitchelson, this time involving the violation of the Kansas Open Meetings Act, Mitchelson repeatedly violated the board’s code of conduct while attempting to protect his reputation and damage Hodge’s.  Mitchelson and President Calaway asked attorney Mark Ferguson to mislead the public by performing what Ferguson called a “complete” investigation which did not at all involve Hodge, and Ferguson intentionally failed to report publicly the fact that just a few months prior, Ferguson’s own words in a letter stated that Mitchelson had violated the letter of the law during a different event (also involving the Kansas Open Meetings Act).

Mitchelson and Calaway’s unethical behavior included obstruction and intimidation.  Perhaps the oddest behavior was the decision to ask Ferguson to send Hodge a “cease and desist” letter — the letter accused Hodge of defamation, but the letter itself was possibly defamatory towards Hodge.  It’s assumed that JCCC leaders did not expect Hodge to make that baseless “cease and desist” letter public — Hodge made the letter public immediately.

All in all, thousands of dollars were wasted covering up the violation of the open meetings laws.  The mistake was one that virtually nobody would have ever known about, had Lynn Mitchelson and Terry Calaway merely kept quiet while Hodge shared a non-sensitive budget document to a Star reporter — a reporter who then wrote an online-only article for The Star’s Prime Buzz blog that simply covered the possible budget cuts (even though the reporter was the first person to make Hodge aware of the improper distribution of the budget document, the article only focused on the information contained in the budget-cutting list).  The retaliation and cover-up — which included an unheard-of and ill-founded verbal, public rebuke of The Star reporter by Trustee Lynn Mitchelson during a JCCC meeting — only caused more problems for Mitchelson and Calaway.

For Johnson County Community College — and for the second time in just a few years — the cover-up may be worse than the crime.

Mitchelson’s current four-year term at JCCC ends in 2011, and Mitchelson has made too many mistakes — most unintentional, with more than enough of them being intentional — to likely win an elected office, ever again.  He has rewarded lucrative government contracts to undeserving friends, property taxes are way up, and now Mitchelson has made it clear he refuses to learn an easy-to-understand open meetings law, even after almost 15 years as a trustee at JCCC.

In the last couple of months, four legislators asked Kansas Attorney General Steve Six for an opinion on the Kansas Open Meetings Act.  The main theme of their letter was this question:  during a closed meeting whose purpose is to evaluate the job perforaance of a non-elected government employee who spends public money (a city manager, for example), is it acceptable to discuss the budget, in length?

Attorney General Steve Six was not legally required to answer the letter, but it’s a common courtesy that is often extended to the legislature, whose members infrequently ask for official opinions.  He agreed to issue an opinion to the questions asked by the four legislators, and that is what he did last week.

While it is a non-specific opinion, it is at significant odds with the actions of District Attorney Howe.  What stands out in AG Six’s opinion is this:  budget discussions may only take place during a closed meeting IF it would otherwise be an unreasonable burden for the local government to separate the discussion (or documents) into two separate events.

With JCCC, it couldn’t be more simple:  the 64-item budget list could (and should) have been shared during an open meeting.  The list of possible budget cuts was prepared ahead of time by President Terry Calaway, and then Calaway verbally reminded the board of the list’s “sensitive” nature.  Of course, the list is only “sensitive” to those who, like Calaway, believe that government should do its business behind closed doors.

What DA Howe had determined during the summer of 2009 was that it was appropriate for Calaway to share the budget document because Calaway was being evaluation on his “fiscal performance,” and because Calaway (days later) stated that he was somehow “responding” to a general tax-related statement that was written on his evaluation (Hodge had written one sentence on Calaway’s February 2009 evaluation stating that it would be best if Calaway would not raise taxes in the final budget, which is not finalized until around June of each year).

AG Six’s opinion re-affirms what we know:  when in doubt, local governments should not discuss the budget during closed meetings.

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